United States Court of Appeals
for the Federal Circuit
______________________
INTERNATIONAL CUSTOM PRODUCTS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-1644
______________________
Appeal from the United States Court of International
Trade in No. 1:08-cv-00189-GWC, Judge Gregory W.
Carman.
______________________
Decided: June 30, 2015
______________________
GREGORY HUGH TEUFEL, OGC Law, LLC, Pittsburgh,
PA, argued for plaintiff-appellant. Also represented by
JEREMY L. SAMEK, Eckert, Seamans, Cherin, & Mellott
LLC, Pittsburgh, PA.
REGINALD THOMAS BLADES, JR., Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by JOYCE R. BRANDA, JEANNE E.
DAVIDSON, MARTIN M. TOMLINSON; EDWARD FRANCIS
KENNY, AMY RUBIN, International Trade Field Office, New
York, NY.
2 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
JOHN MICHAEL PETERSON, Neville Peterson LLP, New
York, NY, for amicus curiae The American Association of
Exporters and Importers. Also represented by RICHARD F.
O'NEILL, RUSSELL ANDREW SEMMEL.
______________________
Before LOURIE, BRYSON, and CHEN, Circuit Judges.
LOURIE, Circuit Judge.
International Custom Products, Inc. (“ICP”) appeals
from the United States Court of International Trade (“the
Trade Court”) decisions (1) dismissing Counts 1–9 of ICP’s
complaint, Int’l Custom Prods., Inc. v. United States, 931
F. Supp. 2d 1338 (Ct. Int’l Trade 2013) (“Decision I”), and
(2) denying ICP’s motion to reconsider, alter, or amend
the judgment and/or to amend the complaint, Int’l Custom
Prods., Inc. v. United States, 991 F. Supp. 2d 1335 (Ct.
Int’l Trade 2014) (“Decision II”). Because the Trade Court
did not err, we affirm.
BACKGROUND
I
“It is a ‘well-established principle that federal courts
. . . are courts of limited jurisdiction marked out by Con-
gress,’” Norcal/Crosetti Foods, Inc. v. United States, 963
F.2d 356, 358 (Fed. Cir. 1992) (quoting Aldinger v. How-
ard, 427 U.S. 1, 15 (1976)), and Congress has delineated
the specific boundaries of the Trade Court’s jurisdiction in
28 U.S.C. § 1581 (2000). Subsections (a)–(h) grant the
Trade Court exclusive jurisdiction over specific actions.
Subsection (i), on the other hand, offers a residual juris-
diction provision, which we have repeatedly held “may not
be invoked when jurisdiction under another subsection of
§ 1581 is or could have been available, unless the remedy
provided under that other subsection would be manifestly
inadequate.” Miller & Co. v. United States, 824 F.2d 961,
INTERNATIONAL CUSTOM PRODUCTS v. US 3
963 (Fed. Cir. 1987); accord Am. Air Parcel Forwarding
Co. v. United States, 718 F.2d 1546, 1549 (Fed. Cir. 1983)
(“[W]here a litigant has access to [the Trade Court] under
traditional means, such as 28 U.S.C. § 1581(a), it must
avail itself of this avenue of approach complying with all
the relevant prerequisites thereto.”).
To invoke the Trade Court’s jurisdiction under subsec-
tion (a), an aggrieved importer must first file a protest
under 19 U.S.C. § 1514, which the United States Customs
and Border Protection (“Customs”) then denies. 28 U.S.C.
§ 1581(a) (stating that the Trade Court “shall have exclu-
sive jurisdiction of any civil action commenced to contest
the denial of a protest” under 19 U.S.C. § 1515); 19 U.S.C.
§ 1515; id. § 1514(a) (identifying the decisions subject to a
protest, such as “classification and rate” and “liquidation
or reliquidation of an entry”). Once Customs denies that
protest, the importer must then pay “all liquidated duties,
charges, or exactions” owed before commencing suit in the
Trade Court. 28 U.S.C. § 2637. ICP contests the consti-
tutionality of that pre-payment requirement on appeal.
II
This case has an extensive history, but we recount be-
low only the facts most relevant to this appeal. ICP is an
importer and distributor of products sold to processed food
manufacturers, including the “white sauce” at issue here.
In late 1998, ICP sought a tariff classification ruling from
Customs for “white sauce” under the Harmonized Tariff
Schedule of the United States (“HTSUS”). Consequently,
Customs issued NYRL D86228 (“Ruling Letter”), classify-
ing “white sauce” under HTSUS 2103.90.9060 (1999) as
“sauces and preparations therefor.”
In 2004, Customs notified ICP that it was initiating a
new investigation into the classification of “white sauce.”
Based on the results of that investigation, Customs issued
a Notice of Action (“2005 Notice”), without providing the
requisite notice and comment, reclassifying “white sauce”
4 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
under HTSUS 0405.20.3000 (2005) as “[d]airy spreads.”
Customs informed ICP that the reclassification would
impact all pending and future entries of “white sauce.”
Ultimately, the reclassification effected a tariff increase of
almost 2400%, and several waves of litigation followed.
The first began in 2005 after Customs liquidated sixty
of ICP’s then-pending entries under the 2005 Notice. ICP
did not protest the liquidation of those sixty entries as is
required to establish jurisdiction under § 1581(a), but it
nonetheless filed a complaint in the Trade Court challeng-
ing the validity of the 2005 Notice. That court exercised
its residual jurisdiction under § 1581(i), finding that
§ 1581(a) proved “manifestly inadequate” because its
requisite protest procedure would put ICP, a company on
the “brink of bankruptcy,” out of business. Int’l Custom
Prods., Inc. v. United States, 374 F. Supp. 2d 1311, 1321–
22 (Ct. Int’l Trade 2005). It then found the 2005 Notice
void because Customs did not comply with the notice and
comment procedures of 19 U.S.C. § 1625(c). Id. at 1326.
On appeal, we reversed and vacated, instead holding
that the Trade Court lacked jurisdiction under § 1581(i).
Int’l Custom Prods., Inc. v. United States, 467 F.3d 1324
(Fed. Cir. 2006) (“ICP I”). We reasoned that § 1581(a) was
not “manifestly inadequate” because “mere allegations of
financial harm . . . do not make the remedy established by
Congress manifestly inadequate,” and thus ICP could not
try to “circumvent the prerequisites of 1581(a) by invok-
ing jurisdiction under 1581(i).” Id. at 1327. ICP had to
protest the liquidation and then pay the duty owed before
it could commence such a lawsuit in the Trade Court.
Another wave began in 2007 after Customs liquidated
several additional “white sauce” entries at the duty rate
prescribed in the 2005 Notice. Customs first liquidated
eleven entries ICP made into its warehouse in 2005. ICP
protested the liquidation of one of those entries, and that
protest was deemed denied thirty days later pursuant to
INTERNATIONAL CUSTOM PRODUCTS v. US 5
19 U.S.C. § 1515(b). ICP paid the duty owed on that entry
and commenced suit in the Trade Court under § 1581(a).
Customs then liquidated eighty-four similar entries made
between 2003 and 2005. ICP protested those liquidations,
but Customs voluntarily suspended those protests pend-
ing the outcome of ICP’s suit.
Before the Trade Court, ICP argued that Customs’
failure to comply with the notice and comment procedures
of 19 U.S.C. § 1625(c) rendered the 2005 Notice void. The
Trade Court agreed, and ordered Customs to reliquidate
the entry pursuant to the Ruling Letter. See Int’l Custom
Prods., Inc. v. United States, 878 F. Supp. 2d 1329, 1350
(Ct. Int’l Trade 2012). On the government’s appeal, we
affirmed. Int’l Custom Prods., Inc. v. United States, 748
F.3d 1182, 1189 (Fed. Cir. 2014) (“ICP IV”). We held that
the 2005 Notice was an interpretive ruling that effectively
revoked the Ruling Letter, and was thus subject to the
strict requirements set forth in 19 U.S.C. § 1625(c). Id. at
1186. Customs’ failure to abide by those requirements
rendered the 2005 Notice void. Id. at 1189. In light of our
holding, the entry in ICP IV and the entries subject to the
suspended protests are being reliquidated pursuant to the
Ruling Letter.
III
In 2007, Customs also liquidated thirteen entries from
between October 2003 and October 2004 under the 2005
Notice. ICP protested the liquidation of those entries in a
single protest, which Customs denied. ICP then asked
Customs for relief under 19 U.S.C. § 1520(c), but Customs
denied that request as “beyond the scope of the authority
provided by the statute.” Joint Appendix 45 ¶ 19. ICP
did not ask Customs, however, to voluntarily reliquidate
those entries under 19 U.S.C. § 1501. Nor did it timely
seek administrative review of the protest denial as “con-
trary to proper instructions” under 19 U.S.C. § 1515(d).
As a result, Customs’ denial became final. Because of its
6 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
administratively final status, that protest could not be
suspended pending our resolution of ICP IV. Thus, unlike
the entries subject to the suspended protests discussed
supra, the thirteen entries from between October 2003
and October 2004 are not being reliquidated; they are
instead at issue here.
In 2008, ICP commenced this suit in the Trade Court.
Because liquidation of the thirteen entries under the 2005
Notice imposed a duty liability of roughly $28 million, and
ICP remained on the “brink of bankruptcy,” ICP filed its
complaint in the Trade Court without first paying the $28
million owed. In Counts 1–8, ICP alleged, inter alia, that
Customs effectively revoked the Ruling Letter without
first complying with the notice and comment require-
ments set forth in 19 U.S.C. § 1625(c); violated its own
regulation when it classified the entries as a dairy spread,
rather than as a sauce preparation; and violated the
Administrative Procedure Act and due process when it
revoked the Ruling Letter. In Count 9, ICP alleged that
the pre-payment requirement of 28 U.S.C. § 2637(a) is
unconstitutional as applied to ICP.
The Trade Court first dismissed Counts 1–8 pursuant
to USCIT Rule 12(b)(1) for lack of subject matter jurisdic-
tion. Decision I, 931 F. Supp. 2d at 1341. It noted that
the pre-payment requirement of 28 U.S.C. § 2637(a) is “a
condition upon the waiver of sovereign immunity” that
“must be strictly construed in favor of the government.”
Id. The court thus reasoned that ICP’s failure to pay the
duties owed foreclosed any attempt to invoke jurisdiction
under § 1581(a). Id. at 1342. The court then held that it
also lacked jurisdiction under § 1581(i), noting that “[ICP]
may not do indirectly what it is prohibited to do directly.”
Id. (citing American Air Parcel and ICP I for the proposi-
tion that ICP could not invoke § 1581(i) because § 1581(a)
remained available and was not manifestly inadequate).
INTERNATIONAL CUSTOM PRODUCTS v. US 7
The Trade Court next found that it had jurisdiction
over Count 9 under § 1581(i) because Count 9 questioned
the constitutionality of 28 U.S.C. § 2637(a), “a provision
over which Customs has no authority or discretion,” and
“advance[d] a claim against the United States arising out
of a [federal law] providing for revenue from imports . . . .”
Id. at 1343. But the court nevertheless dismissed Count 9
pursuant to USCIT Rule 12(b)(5) for failure to state a
claim upon which relief can be granted. Id. at 1345. In so
doing, the court noted that the pre-payment requirement
“has been a fixture of the customs laws” since 1845, id. at
1343, and “has consistently been upheld as a valid condi-
tion attached to the government’s waiver of sovereign
immunity” in § 1581(a), id. at 1344. The court recognized
that the pre-payment requirement “seem[ed] both harsh
and unfair” when applied here, id., yet stated that such
unfairness did not present a constitutional defect.
ICP timely moved to reconsider, alter, or amend the
judgment, or, in the alternative, to amend the complaint,
Decision II, 991 F. Supp. 2d at 1336, and the Trade Court
denied that motion, id. at 1339. The court reasoned that
reconsidering the judgment would be improper because
ICP only “reiterate[d] arguments already made in its brief
opposing the motion to dismiss and fully considered at
that time.” Id. at 1337. The court empathized with ICP’s
situation, id. at 1338 (“[ICP] is unable to obtain relief
because it cannot prepay the very duties that the courts
have declared invalid.”) (emphasis in original), but again
noted that the pre-payment requirement places a permis-
sible condition on the government’s waiver of sovereign
immunity, id. The court further reasoned that allowing
amendment “here would be futile and unduly delay reso-
lution of this case.” Id. at 1339.
ICP timely appealed to this court; we have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(5).
8 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
DISCUSSION
I
The constitutionality of 28 U.S.C. § 2637(a), i.e., the
pre-payment requirement, permeates every aspect of this
appeal; we therefore address the issue at the outset. In so
doing, we start with the Trade Court’s dismissal of Count
9 for failure to state a claim upon which relief can be
granted. See Decision I, 457 F.3d at 1345.
We review de novo the Trade Court’s dismissal for
failure to state a claim. Sioux Honey Ass’n v. Hartford
Fire Ins. Co., 672 F.3d 1041, 1049 (Fed. Cir. 2012). “Dis-
missal for failure to state a claim is proper only when it is
beyond doubt that the plaintiff can prove no set of facts
that would entitle it to relief.” Amoco Oil Co. v. United
States, 234 F.3d 1374, 1376 (Fed. Cir. 2000). We also
review de novo any issues of constitutional interpretation.
Ashley Furniture Indus., Inc. v. United States, 734 F.3d
1306, 1309 (Fed. Cir. 2013) (quoting U.S. Shoe Corp. v.
United States, 196 F.3d 1378, 1381 (Fed. Cir. 2002)).
ICP argues that we should reinstate Count 9 because
the pre-payment requirement, as applied to ICP, deprives
ICP of its property without due process of law by creating
“an insurmountable financial barrier to judicial review.”
Appellant’s Br. 20. Requiring pre-payment of duties owed
undoubtedly burdens an importer, and we appreciate the
harsh reality that requirement imposes here, as ICP must
pay almost $28 million before it can commence suit in the
Trade Court. But we nonetheless hold that the pre-
payment requirement does not deny ICP the fundamental
processes of fairness required by the Fifth Amendment.
A
The pre-payment requirement at issue simply condi-
tions the government’s waiver of sovereign immunity in
suits over the denial of a protest. It is “elementary” that
“[t]he United States, as sovereign, is immune from suit
INTERNATIONAL CUSTOM PRODUCTS v. US 9
save as it consents to be sued.” United States v. Mitchell,
445 U.S. 535, 538 (1980) (quoting United States v. Sher-
wood, 312 U.S. 584, 586 (1941)). In the event the gov-
ernment consents to suit, that waiver “cannot be implied
but must be unequivocally expressed.” Id. (citation omit-
ted). In the trade context, the government “unequivocal-
ly” consented to suit for certain actions, such as when an
importer contests the denial of a protest. Humane Soc. of
United States v. Clinton, 236 F.3d 1320, 1328 (Fed. Cir.
2001) (“[We] conclude that § 1581 not only states the
jurisdictional grant to the [Trade Court], but also provides
a waiver of sovereign immunity over the specified classes
of cases.”); see 28 U.S.C. § 1581 (entitled “[c]ivil actions
against the United States”); id. § 1581(a).
Yet, even when the government waives its immunity,
a plaintiff lacks carte blanche to file suit. Any waiver is
subject to “the terms and conditions under which [the
government] consents to be sued,” NEC Corp. v. United
States, 806 F.2d 247, 248 (Fed. Cir. 1986), and “must be
strictly observed,” Lehman v. Nakshian, 453 U.S. 156, 161
(1981) (citing Soriano v. United States, 352 U.S. 270, 276
(1957)). Courts have repeatedly recognized, for example,
a statute of limitations as such a valid condition. Block v.
N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273,
287 (1983) (“When waiver legislation contains a statute of
limitations, the limitations provision constitutes a condi-
tion on the waiver of sovereign immunity.”); see also Hart
v. United States, 910 F.2d 815, 817 (Fed. Cir. 1990) (“The
statute of limitations is an express limit[] on the Tucker
Act’s waiver of sovereign immunity.”). Any claim brought
outside the limitations period is accordingly barred.
The Supreme Court has also held that pre-payment of
monies owed similarly conditions the government’s waiver
of immunity. In Cheatham v. United States, the Court
reiterated that “the government has the right to prescribe
the conditions on which it will subject itself to the judg-
ment of the courts.” 92 U.S. 85, 89 (1875). It then noted
10 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
that “the general government has wisely made the pay-
ment of the tax claimed, whether of customs or of internal
revenue, a condition precedent to a resort to the courts
. . . . We regard this as a condition on which alone the
government consents to litigate.” Id. The Court has yet
to question the validity of such a condition. United States
v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 11 (2008)
(noting that a taxpayer must pay her taxes before initiat-
ing a refund action, and “see[ing] no constitutional prob-
lem at all” with that requirement); Flora v. United States,
362 U.S. 145, 177 (1960) (stating that the tax scheme
“requires full payment . . . before an income tax refund
suit can be maintained”). We find no differently here.
As in the tax context, the pre-payment requirement
here has been “a fixture of the customs laws” since the
founding of the republic. Decision I, 931 F. Supp. 2d at
1343. The first tariff statutes lacked any mechanism for
importers to directly challenge a duty rate. See, e.g., Act
of July 4, 1789, ch. 2, 1 Stat. 24; Act of July 31, 1789, ch.
5, 1 Stat. 29. Thus, an importer wanting to challenge a
rate had to pay the duty and then sue the customs collec-
tor for a refund in a common law court. United States v.
Cherry Hill Textiles, Inc., 112 F.3d 1550, 1552 (Fed. Cir.
1997) (recounting the genesis of the pre-payment re-
quirement). That pre-payment requirement was subse-
quently codified in 1845, and now resides in 28 U.S.C.
§ 2637(a): “A civil action contesting the denial of a protest
. . . may be commenced in the Court of International
Trade only if all liquidated duties, charges, or exactions
have been paid at the time the action is commenced.” It
undoubtedly conditions the government’s consent to suit:
If . . . the appellant desires to litigate the matter
here by protest . . . it must first meet the demands
of the Government, pay the money claimed to be
due, and then proceed by way of protest . . . . Sec-
tion 514 contemplates in cases of this character
that the money shall be in the hands of the Gov-
INTERNATIONAL CUSTOM PRODUCTS v. US 11
ernment at the time the protest is filed. Suitors in
these matters must constantly have in mind that
they sue the Government only by the Government’s
grace.
Champion Coated Paper Co. v. United States, 24 CCPA
83, 89–90 (1936) (emphases added). Absent any genuine
authority contesting the validity of such a condition, we
decline the invitation to disturb the otherwise well-settled
understanding that the government may condition its
involvement in a litigation on the pre-payment of, in this
case, duties owed.
B
We further conclude that ICP cannot allege a genuine
due process claim, for it lacks a constitutionally protected
property interest. “The first inquiry in every due process
challenge is whether the plaintiff has been deprived of a
protected interest in ‘property’ or ‘liberty.’” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).
ICP contends that it has a property interest “in hav-
ing Customs classify its entries of white sauce under the
sauces heading.” Appellant’s Br. 22. We disagree.
The Constitution’s “procedural protection of property
is a safeguard of the security of interests that a person
has already acquired in specific benefits.” Bd. of Regents
of State Colls. v. Roth, 408 U.S. 564, 576 (1972). Those
benefits “may take many forms,” id., and are not simply
limited to “real estate, chattels, or money,” id. at 572. But
for a benefit to warrant the procedural protections of due
process, “a person clearly must have more than an ab-
stract need or desire for it. . . . He must, instead, have a
legitimate claim of entitlement to it.” Id. at 577. For that
reason, welfare benefits, Goldberg v. Kelley, 397 U.S. 254
(1970), and the right to continued receipt of Social Securi-
ty disability benefits, Mathews v. Eldrige, 424 U.S. 319
(1976), are constitutionally protected property interests.
12 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
In contrast, ICP does not have a “legitimate claim of
entitlement” to a specific classification and its associated
duty rate, much less the maintenance of that duty rate.
As we noted, “the Constitution does not provide a right to
import merchandise under a particular classification or
rate of duty,” A Classic Time v. United States, 123 F.3d
1475, 1476 (Fed. Cir. 1997), or even afford “a protectable
interest to engage in international trade,” Am. Ass’n of
Exporters & Importers-Textile & Apparel Grp. v. United
States, 751 F.2d 1239, 1250 (Fed. Cir. 1985); accord NEC
Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir.
1998) (“[E]ngaging in foreign commerce is not a funda-
mental right protected by notions of substantive due
process.”). Nor does the Constitution recognize a right to
rely on the maintenance of a duty rate. Norwegian Nitro-
gen Prods. Co. v. United States, 288 U.S. 294, 318 (1933)
(“No one has a legal right to the maintenance of an exist-
ing rate or duty.”); GPX Int’l Tire Corp. v. United States,
780 F.3d 1136, 1144 (Fed. Cir. 2015) (same); Gilda Indus.,
Inc. v. United States, 446 F.3d 1271, 1284 (Fed. Cir. 2006)
(“[E]xecutive actions involving foreign trade, such as the
imposition of tariffs, do not constitute the taking of prop-
erty without due process of law.”). Absent a right to a
duty rate and its sustained existence, ICP cannot contest
the adequacy of the process provided, which here includes
the pre-payment requirement.
Moreover, to the extent process is due, Congress has
delineated a notice and comment regime that Customs
must follow in order to alter or revoke a ruling letter.
When Customs fails to abide by that process, an importer
has access to judicial review. The statutory pre-payment
requirement does not completely foreclose such access,
even for a financially struggling importer. An importer
can pay the duties on a single entry and request that
liquidation of the remaining entries be suspended, if it
does so on a timely basis. See, e.g., ICP IV, 748 F.3d 1182.
Moreover, in circumstances such as this, additional pro-
INTERNATIONAL CUSTOM PRODUCTS v. US 13
tections exist. See 19 U.S.C. § 1515(d). The statutory
scheme and pre-payment requirement are not unconstitu-
tional simply because ICP failed to timely avail itself of
the provided procedures.
Because the pre-payment requirement is a valid con-
dition attached to the government’s waiver of immunity,
and because ICP lacks a constitutionally protected prop-
erty interest, the Trade Court correctly dismissed Count 9
for failure to state a claim.
II
We similarly review de novo the Trade Court’s dis-
missal for lack of subject matter jurisdiction. Heartland
By-Prods., Inc. v. United States, 424 F.3d 1244, 1250 (Fed.
Cir. 2005).
ICP has twice before argued that the Trade Court had
jurisdiction to hear its claims under § 1581(i), ICP I, 467
F.3d 1324; Int’l Custom Prods. v. United States, 214 F.
App’x 993 (Fed. Cir. 2007), and we have twice rejected its
arguments. In ICP I, we reiterated that “mere allegations
of financial harm . . . do not make the remedy established
by Congress manifestly inadequate,” and thus ICP had to
proceed via § 1581(a). ICP I, 467 F.3d at 1327. ICP now
suggests that § 1581(a) cannot confer jurisdiction at all
because the protest procedures of 19 U.S.C. § 1514 do not
apply to a claim “centered on the patent ultra vires nature
of Customs’ actions.” Appellant’s Br. 37. We yet again
find ICP’s attempt to circumvent § 1581(a) unpersuasive.
“[W]here Congress has prescribed in great detail a
particular track for a claimant to follow, in administrative
or judicial proceedings, and particularly where the claim
is against the United States . . . , the remedy will be . . .
exclusive.” Nat’l Corn Growers Ass’n v. Baker, 840 F.2d
1547, 1558 (Fed. Cir. 1988). Here, Congress “prescribed
in great detail a particular track for a claimant” to chal-
lenge a classification decision or duty assessment:
14 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
[A]ny clerical error, mistake of fact, or other inad-
vertence, . . . adverse to the importer, in any en-
try, liquidation, or reliquidation, and, decision of
the Customs Service, including the legality of all
orders and findings entering into the same, as to . .
. (2) the classification and rate and amount of du-
ties chargeable; . . . [and] (5) the liquidation or re-
liquidation of an entry . . . shall be final and
conclusive . . . unless a protest is filed . . . .
19 U.S.C. § 1514(a) (emphasis added). That is an express
statement requiring an importer to challenge the legality
of Customs’ classification or liquidation decisions via the
protest procedures in §§ 1514 and 1515. See Omni U.S.A.,
Inc. v. United States, 840 F.2d 912, 915 (Fed. Cir. 1988)
(noting the perceived “pervasive requirement throughout
the statute to channel all nonexcepted protests through
§ 1514 even when those protests go to the legality of a
custom official’s action”). And the Trade Court has juris-
diction over such a challenge exclusively via § 1581(a). Id.
(refusing to grant jurisdiction under § 1581(i) for the “void
liquidation” challenge simply because the importer failed
to comply with the requirements of the proper jurisdiction
provision).
ICP’s self-proclaimed “ultra vires” claim, which simply
questions “the legality of all orders and findings entering
into the same,” is just such a challenge. ICP must thus
proceed via the protest procedures of §§ 1514 and 1515,
and thus must also comply with the jurisdictional prereq-
uisites of § 1581(a) to pursue a suit in the Trade Court.
To allow ICP to ignore the heart of its claim and assign an
arbitrary classification to it would exacerbate our earlier
noted concern that “[b]y artful pleading alone a litigant
would be able to change the entire statutory scheme
Congress has established.” Am. Air Parcel, 718 F.2d at
1550. Congress “prescribed in great detail” a mechanism
by which importers challenge classification and liquida-
tion decisions. ICP cannot now ignore that scheme.
INTERNATIONAL CUSTOM PRODUCTS v. US 15
Section 1581(a) thus remains the proper vehicle for
ICP to challenge the legality of the 2005 Notice in the
Trade Court. Yet, as the Trade Court held, ICP’s failure
to pay the duties owed foreclosed any attempt to enter the
Trade Court under § 1581(a). ICP cannot now reclassify
its claim to excuse itself from § 1581(a)’s associated pre-
payment requirement. See Decision I, 931 F. Supp. 2d at
1342 (“[ICP] may not do indirectly what it is prohibited to
do directly.”). The Trade Court therefore correctly dis-
missed Counts 1–8 for lack of jurisdiction.
III
We review the dismissal of a motion to amend and the
dismissal of a motion for reconsideration for an abuse of
discretion. Renda Marine, Inc. v. United States, 509 F.3d
1372, 1380 (Fed. Cir. 2007) (motion for reconsideration);
Saarstahl AG v. United States, 177 F.3d 1314, 1320 (Fed.
Cir. 1999) (motion to amend).
ICP argues that the Trade Court abused its discretion
by denying ICP an opportunity to amend its complaint to
incorporate a “deemed liquidated jurisdictional basis for
its claims.” Reply Br. 12. According to ICP, an importer
need not file a protest, and thus need not comply with the
earlier described protest procedures, when it challenges
an entry “Customs purported to liquidate . . . after it had
already been liquidated by operation of law.” Appellant’s
Br. 29. Moreover, ICP contends that any purported delay
in raising a deemed liquidated argument did not prejudice
the government, and that allowing amendment to incor-
porate such an argument would not have been futile.
We disagree. As the government contends, the Trade
Court did not abuse its discretion in denying ICP’s motion
for reconsideration and/or to amend. With respect to the
motion for reconsideration, the Trade Court did not abuse
its discretion by rejecting an “attempt[] to re-litigate the
case.” Decision II, 991 F. Supp. 2d at 1338. Reconsidera-
tion is granted in limited circumstances, and as the court
16 INTERNATIONAL CUSTOM PRODUCTS, INC. v. US
noted, ICP failed to satisfy those circumstances. No
meaningful argument disputing that has been raised now
on appeal.
With respect to the motion to amend, the Trade Court
did not abuse its discretion by noting that accepting ICP’s
deemed liquidated argument would “be futile and unduly
delay resolution of this case.” Id. at 1339. As the gov-
ernment notes, ICP waited five years to raise its deemed
liquidated argument, only first raising the argument after
the Trade Court dismissed the case. It was not an abuse
of discretion for the court to find that hearing such an
argument would unduly delay resolution of the case. See
Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp.,
587 F.3d 1339, 1354 (Fed. Cir. 2009) (holding that “the
district court was clearly within its discretion to deny the
motion to amend based on undue delay and a similarly
burdensome need to reopen summary judgment motions”).
Moreover, the Trade Court did not abuse its discretion
in finding the deemed liquidated argument futile here. As
we have held, an importer may use a deemed liquidated
claim as a shield in an enforcement action. Cherry Hill,
112 F.3d at 1560. An importer can thus defend against a
purported untimely liquidation in an enforcement action
without first having to protest. Id. at 1561 (“We therefore
hold that because Cherry Hill’s entry was liquidated by
operation of law . . . , IC&S was not required to protest
the October 28 liquidation in order to . . . defend against
liability on the ground of the deemed liquidation.”). Such
a claim, however, cannot be further used “as a sword” in
an action against the government simply to avoid protest
procedures. Fujitsu Gen. Am., Inc. v. United States, 283
F.3d 1364, 1375–76 (Fed. Cir. 2002). ICP’s claim against
the government did not present the proper posture for
raising a deemed liquidated claim, and it was therefore
not an abuse of discretion for the Trade Court to dismiss
the requested amendment to include that argument here.
INTERNATIONAL CUSTOM PRODUCTS v. US 17
We therefore hold that the Trade Court correctly de-
nied ICP’s motion for reconsideration and/or to amend the
complaint. We have considered all remaining arguments,
but find them unpersuasive.
CONCLUSION
For the foregoing reasons, the decisions of the Trade
Court (1) dismissing Counts 1–9 of ICP’s complaint and
(2) denying ICP’s motion to reconsider, alter, or amend
the judgment and/or to amend the complaint are affirmed.
AFFIRMED